PETITIONER:
GRAM SABHA, BESAHANI
Vs.
RESPONDENT:
RAM RAJ SINGH & ORS.
DATE OF JUDGMENT:
31/01/1968
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1968 AIR 1073 1968 SCR (2) 856
ACT:
U.P. Zamindari Abolition and Land Reforms Act, 1950 (1
of 1951), s. 212 A (6) and (7)---Sub-Divisional Officer
ordering ejectment under s. 212 A (6) without awarding
compensation--Such order is invalid and does not attract
provisions of s. 212 A (7) and Entry at Sl. No. 32B of
Appendix III read with Rule 338 of U.P. Zamindari Abolition
and Land Reforms Rules, 1952--Suit challenging such order
can be filed under s. 209 of the Act within six years of the
date of dispossession.
HEADNOTE:
The respondents filed a suit under s. 209 of the U.P.
Zamindari Abolition and Land Reforms Act 1950, in respect of
five plots of land claiming to have Sirdari rights in one of
them and Bhumidari rights in the other four. By this suit
they challenged the order of the Sub-Divisional Officer
purporting to be under s. 212A (6) of the Act dispossessing
the, plaintiffs from he aforesaid plots and granting
possession thereof to the appellant Gram Sabha. The Revenue
Court framed several issues, the second of which was whether
the respondents had ever acquired Bhumidhari fights in the
four plots in which they claimed them. This issue was
referred to the Civil Court which held that, as no suit was
filed under s. 212A (7) of the Act, within six months of the
dispossession as required by the Entry at S1. No. 32B of
Appendix III read with Rule 338 of the U.P. Zamindari and
Land Reforms Rules 1952, the respondents rights as
Bhumidars, if any, stood extinguished. On receipt of this
decision on issue No. 2 the Revenue Court proceeded to
determine the claim of the respondents in respect of
Sirdari rights in one plot and it found that these rights
were never acquired. It therefore dismissed the
respondents' suit without recording any finding on the
remaining issues. The first appeal having failed, the
respondents filed a second appeal. Therein the High Court
held that the order of the Sub-Divisional Magistrate
purporting to be made under s. 212A (6) of the Act was not
valid because, it did not direct payment of compensation as
laid down in that section. so that the rights as Sirdars and
Bhumidars were not lost by the respondents. The appellant
came to this Court by special leave.
HELD: (i) The language of s. 212A (6) makes it clear
that the order under that pro,vision must be an order for
ejectment of the person in possession of the land o.n
payment of such compensation as may be prescribed. In the
present case no compensation having been ordered to be paid
there was no valid order under s. 212A (6). Accordingly the
provisions of s. 212A (7) which come into play only when a
valid order has been passed under s. 212A (6), were not
attracted to the case at all. In such a case a suit c/early
lay against the appellants under s. 209 of the Act and such
a suit could be instituted within six years from the date
that unlawful possession was taken by the appellant. The
present suit was admittedly brought within that period and
was therefore not time-barred. [859 E860 E]
(ii) The suit in respect of the: plot in which Sirdari
rights were claimed by the respondents was dismissed by the
trial court on the ground that such rights had never been
acquired. This was a finding of fact and the invalidity of
the order under s. 212A did not affect it. [860 F]
857
(iii) In respect of the four plots in which Bhumidhari
rights were claimed by the respondents, the case must be
remanded to the trial court for determination of the
undecided issues relating to them. [859 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 719 of 1966.
Appeal by special leave from the judgment and order dated
February 18, 1965 of the Allahabad High Court in Second
Appeal No. 4482 of 1961.
S. P. Sinha, E. C. Agrawala and P. C. Agrawala, for the
appellant.
B. C. Misra and H. K. Puri, for respondents Nos. I and 2.
The Judgment of the Court was delivered by
Bhargava, J. The plaintiffs/respondents filed a suit No. 25
of 1957 under section 209 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (No. 1 of 1951)
(hereinafter referred to as ‘the act”), claiming possession
of five plots Nos. 729/2, 725/2, 723/2 881/2 and 330/3 on
the ground that they were Sirdars of plot No. 330/3 and
Bhudars of the remaining plots. The main allegation was
that the Chairman of the Gram Samaj of the village, in which
the plots were situated, had, for certain reasons, filed an
application before the Sub-Divisional Officer under section
212A of the Act or dispossession of the
plaintiffs/respondents on the ground that these lands were
of public utility and they vested in the Gram Samaj. The
Sub-Divisional Officer, purporting to act under S. 212A of
the Act, passed an order for dispossession of the
plaintiffs/ respondents and granted possession of the lands
to the appellant, Gram Sabha, Besahani. That order
purporting to be under s. 212A of the Act was challenged as
invalid and, on that basis, possession was claimed from the
appellant under s. 209 of the Act, alleging that the
possession of the appellant was without any legal right.
The suit was defended on behalf of the appellant on various
grounds as a result of which the following ten issues were
framed by the trial Court
“Issue No. 1 : Whether the plaintiffs have right to file the
present suit ?
2 : Whether plaintiffs are Bhumidars of the plots in suit
except plot No. 330/3 ? If so, its effect ?
3 : Whether plaintiff’s are Sirdars of plot No. 330/3 in
suit ?
4 : Whether plaintiffs are entitled to recovery of
possession over the plots in suit ?
5 : Whether the disputed plots are land of public utility
and they vest in Gaon Samaj ? If so, its effect ?
8 5 8
6 :Whether the suit is barred by s. 23, C.P.C. ?
7:Whether the suit is barred by section II, C.P.C. ?
8 Whether the disputed plots are culturable land 7
If so, its effect ?
9:_ Whether the Court has jurisdiction to the case ?
10 Whether the suit is within time
Of these issues, issue No. 2 was triable exclusively by the
Civil Court and, consequently, the Revenue Court, which was
seized of the suit, referred this issue to the Civil Court
for a finding. This issue No. 2 arose because of two
pleadings put forward on behalf of the appellant. One was
that the plaintiffs/respondents had never acquired Bhumidari
rights, and the other was that even if it be held that they
did possess any Bhumidari rights, those rights were
extinguished when the respondents were dispossessed in
pursuance of the order of the Sub-Divisional Officer under
s. 212A of the Act and no suit within six months was
instituted by the respondents in accordance with s. 212A(7)
of the Act. The Civil Court, without going into the
question whether the respondents had ever acquired Bhumidari
rights, decided this issue only on the limited ground that
the Bhumidari rights of the respondents had been
extinguished as a result of the order under s. 212A of the
Act. On receipt of this finding from the Civil Court, the
Revenue Court proceeded to record its own finding on issue
No. 3 in respect of plot No. 330/3 which was the only plot
in which the respondents had claimed rights as Sirdars. On
this issue, the Revenue Court went into the first question
only raised on behalf of the appellant and held that it was
not proved that the respondents had ever been admitted to
tenancy of this plot of land, so that they never became
Sirdars of this land. On this view, the Revenue Court
considered it unnecessary to enter into the question whether
the Sirdari rights acquired, if any, had been extinguished
as a result of the order under s. 212A of the Act. In view
of these findings no decision was recorded on issues Nos. 5-
10, and the suit was dismissed. That order was upheld by
the first appellate Court. The respondents then filed a
second appeal in the AllahabadHigh Court. The High
Court held that the order purporting to be under s. 212A of
the Act was not valid, because it did not direct payment of
compensation as required by s. 212A(6) of the Act, so that
the rights as Sirdars and Bhumidars were not lost ‘by the
respondents. On this view, the High Court set aside the
dismissal of the suit by the lower Courts and decreed the
suit of the respondents. The appellant has now come up to
this Court against this _judgment by special leave.
Two points have been raised in this appeal on behalf of the
appellant before us. The first point is that the High Court
was
8 5 9
wrong in holding that the order passed under S. 2 212A of
the Act by the Sub-Divisional Officer was not valid, and on
that basis decreeing the suit which was clearly time-barred,
as it was not instituted within six months of the order of
ejectment passed by the Sub-Divisional Officer under S.
212A(6) of the Act. This ground raised in the appeal has to
be rejected, as we are of the opinion that the High Court
was perfectly correct in holding that the order of the Sub-
Divisional Officer under, S. 212A of the Act was not valid
and, consequently, the provisions of S. 212A(7) of the Act
were never attracted to the present dispute. Section
212A(6) & (7) are as follows :-
“212A. (6) Where upon the said hearing the
Collector is satisfied that the person was
admitted as a tenure-holder or -rove-holder of
land referred to in Section 212 or being an
intermediary ‘brought such land under his own
cultivation or planted a grove thereon on or
after the eighth day of August, 1946, he shall
pass an order for ejectment of the person from
the land on payment of such compensation as
may be prescribed.
(7) Where an order for ejectment has been
passed under this section, the party against
whom the order has been passed may institute a
suit’ to establish the right claimed by it but
subject to the results of such suit the order
passed under sub-section (4) or (6) shall be
conclusive.”
The language of S. 212A(6) makes it clear that the order
under that provision must be an order for ejectment of the
person in possession of the land on payment of such
compensation as may be prescribed. This means that an order
under that provision must first direct payment of
compensation to the person in possession and the direction
for ejectment of the person in possession must be made
effective only thereafter, i.e., after the compensation has
been paid. The order to be made under this provision of law
must, therefore, contain as a condition precedent to
ejectment the payment of compensation. If no payment of
compensation is ordered, the order made would not be an
order under this provision of law. In the present case,
admittedly no compensation was ordered to be paid in the
order purporting to have been passed under s. 212A(6) of the
Act, so that that order cannot be treated as an order under
this provision of law. The order not being under this
provision, the dispossession of the plaintiffs/respondents
in pursuance of that order was clearly illegal and the
plaintiffs/ respondents had the right to institute the suit
for obtaining possession under s. 209 of the Act.
It is true that, in accordance with Entry at SI. No. 32B of
Appendix III read with Rule 338 of the U.P. Zamindari
Abolition
860
and Land Reforms Rules, 1952 (hereinafter referred to as
“the Rules”), a suit to establish a right claimed in
accordance with s. 212A(7) of the Act has to be instituted
within six months. In pursuance of that right claimed,
possession can also be claimed; and, if the suit for
establishing the right fails, the right to obtain possession
would also become time-barred. Consequently, under s. 1 8 9
(c) of the Act, the person concerned, who falls to institute
the suit within this period of limitation in accordance with
S. 212A(7) of the Act, would have his interest in the land
extinguished. This provision, however, will only apply to
cases where a valid order has been made under s. 212A of the
Act and the person concerned has been dispossessed in
pursuance of such an order. In the present case, we have
held that the order, in pursuance of which the respondents
were dispossessed, was not a valid order under S. 212A(6) of
the Act and cannot be held to be an order under that
provision of law, so that the respondents in this case must
be deemed to have been deprived of possession otherwise than
in accordance with law. In such a case, a suit clearly lay
against the appellant under s. 209 of the Act and such a
suit could be instituted within six years from the date that
unlawful possession was taken by the appellant in accordance
with Entry at SI. No. 30 of Appendix III read with R. 338
of the Rules. The present suit was admittedly brought
within this period of limitation and was, therefore, not
time-barred. The High Court was, therefore, right in
holding that the claim of the plaintiffs/respondents could
not be defeated on this ground.
The second point urged on behalf of the appellant, however,
appears to us to have great force and must be accepted.
It was urged that, so far as plot No. 330/3 is concerned,
there was a finding of fact recorded by the trial Court,
which was upheld by the first appellate Court, that the
plaintiffs/respondents never acquired any tenancy or Sirdari
rights in this land, so that, irrespective of the validity
of the order under s. 212A(6) of the Act, the
plaintiffs/respondents’ suit for possession of this plot had
to be dismissed. The High Court, in decreeing the suit,
clearly ignored this aspect. The dismissal of the suit by
the trial Court which was upheld by the first appellate
Court in respect of this plot No. 330/3 was, therefore, not
liable to be set aside even on the view taken by the High
Court and to that extent it has to be upheld.
With regard to the remaining four plots in which the respon-
dents were claiming Bhumidari rights, the error committed by
the High Court is that on the finding recorded by that Court
there should have been an order of remand to determine other
questions raised in the suit in respect of those plots. One
of the questions raised, which formed part of issue No. 2
and was never decided by the Civil Court to which that issue
was referred, was that the
861
respondents had never acquired Bhumidari rights at all in
these plots. That question should have been remitted for a
fresh decision when the High Court held that the Civil Court
was wrong in holding that the Bhumidari rights, if possessed
by the respondents in these plots, had been extinguished
under s. 189 of the Act in view of the failure of the
respondents to institute the suit within the period of
limitation applicable to a suit under s. 212A(7) of the Act.
Further, in respect of these plots, other issues which were
not decided ‘by the Revenue Court also required decision
before the suit in respect of them could be completely
disposed of. Consequently, it is now necessary to remand
the suit to the trial Court for a fresh trial for the
purposes indicated above.
As a result, the appeal is allowed and the decree passed by
the High Court is set aside. The suit of the
plaintiffs/respondents will stand dismissed in respect of
plot No. 33O/3, while it will go back to the trial Court for
a fresh decision in respect of the remaining four plots in
the light of our decision that, in case the respondents had
acquired Bhumidari rights, they were not extinguished by any
order under section 212A of the Act. Parties will be given
an opportunity to give evidence on the question of
acquisition of Bhumidari rights by the
plaintiffs/respondents an(, on other issues which have not
been decided so far. Costs of this appeal shall abide the
result of the suit.
G.C. Appeal allowed.
L3 Sup CI/68- 11
862